Remedies For Breach Research Articles

Excepția de neexecutare a contractului și dreptul de retenție

"This study contains a detailed analysis of the Defense of refusal to perform and the Right of retention in the current Civil Code, with reference to the practice of the courts of law and to comparative law issues. Therefore, following the update of the two legal institutions, the present study mirrors the defense of refusal to perform with the right of retention (i.e. legal frame, notion, legal ground, characteristics, application domain, exercise’s conditions, operation’s mechanism, effects and transitional law). Following the examinations of the above-mentioned issues, both legal institutions are compared in order to outline the differences between them. By doing so, the article aims to settle the edge between these two means of judicial defense and to put an end to long debated controversies in the literature and judicial practice. Key-words: Civil Code; favor contractus; the rule of specific performance; the plea of breach of the contract/defense of refusal to perform/right to withhold performance of reciprocal obligation; right of retention; defense; statement of defense; counterclaim; synallagmatic contract; the special effects of synallagmatic contract; remedies for breach of contract; imperfect guarantee"

Improving Substituted Performance in India: Attending to the Loopholes

Abstract With the passing of the Specific Relief (Amendment) Act, 2018, the primary remedy for breach of contract was changed to specific performance from that of damages. The amendment brought in many other path-breaking changes, along with the introduction of a provision on substituted performance under Indian contract law. Now, a non-defaulting party will have a statutory remedy to either perform the contract himself or get it performed by a third party, the cost of which must be borne by the defaulting party. Despite being a welcomed provision, the faulty legislative drafting of the provision has left many issues unresolved. The authors, in this article, have tried to point out those issues. Thereafter, using the cross-jurisdictional analysis and taking into consideration the jurisprudence developed on past contractual practices, the authors have come up with suggestions to improve the provision.

The Sufficiently Serious Breach Test in Action. Damages in Procurement Law and a Tale of Three Courts: the CJEU, the UK Supreme Court and the EFTA Court

This article reflects on the conditions to trigger liability of contracting authorities for breach of public procurement rules and examines whether public procurement damages should be categorized as a particularization of the principle ofMember State liability or as a special remedy for breach of procurement rules. The article focuses on two controversial decisions, one rendered by the UK Supreme Court and the other by the EFTA Court which reached opposite conclusions as regards the nature of this remedy and the conditions to trigger liability, the controversy being whether the Francovich condition of a ‘sufficiently serious breach’ should be satisfied when triggering liability for illegal award decisions or not. The article reflects on the reasons that led to this opposing interpretation of the remedy of damages, describe theCourt of Justice of the European Union’s case law on damages and discuss why, in the procurement law arena, the ‘sufficiently serious breach’ was seen as incompatible with strict liability. After demonstrating that there is no such incompatibility, I argue that the lack of clarity regarding the conditions for making good procurement damages are not related to the subjective factor, but rather to the effectiveness benchmark for the remedy and its position within the architecture of the Remedies Directive. EU law, public procurement law, damages, Member States Liability comparative law, comparative public liability, sufficiently serious breach.

Retaliation, Remedies, and Contracts

AbstractContracts commit individuals to a future course of action and create feelings of entitlement on the parties. In a contractual gap, parties’ duties and rights are not univocal, and while promisors will often feel entitled to breach, promisees will feel entitled to receive the promised performance. This divergence leads to disputes, aggrievement, and retaliatory behavior whenever one of the parties feels shortchanged. Remedies for breach are then apt not only to induce performance by promisors, but also to minimize promisees’ aggrievement, reduce retaliation, and thereby keep the peace in society. This article reports results from an experiment that investigates under what circumstances promisees retaliate to breach and to what extent expectation damages fulfill the function of crowding out retaliatory behavior. It reveals how norms of fairness play a fundamental role in shaping parties’ reactions to breach, as promisees did not punish any violation of a prior agreement. They rather punished breach when the promisor profited from it, and the outcome was an unfair distribution of the gains from trade. Neither loss of expectancy nor the inefficiency of the result induced retaliation. Expectation damages successfully crowded out retaliation by disappointed promisees, and thereby avoided high welfare losses from decentralized forms of punishment of perceived wrongs.

Remedies for Breach of Privacy

Remedies for Breach of Privacy

Mitigation of Damage in the Context of Remedies for Breach of Contract

When I began this article my main objective was to show why the concept of mitigation of damage, which is so extensively used in common law, was apparently non-existent in civil law. Right from the beginning, however, I found conclusive evidence which proved that the concept of mitigation actually exists in civil law too; my purpose was then transformed into explaining how this concept works in two systems of law that are so different in their approaches and their methodologies. In order to make this study manageable, I have focused on the links between the concept of mitigation and the problem of pecuniary loss following a breach of contract. Consequently, issues pertaining to tort, physical injuries to persons and things, and claims to liquidate sums, as in debt, will be dealt with only incidentally. Regrettably, this course of action will leave open many interesting questions related to mitigation, mainly in tort but also in contract. Nevertheless, I trust that the present study will constitute a useful basis for further analysis on this subject. I have divided this work into two parts, devoted to the two phases of recovery following a breach of contract. The first phase concerns the choice of which losses fall under the protection of the law, among all those claimed by the plaintiff. I propose to call this phase measuring the extent of the loss. The second phase involves the determination of what the defendant will have to do in order to compensate the plaintiff; when this compensation takes a pecuniary form it involves the assessment of the pecuniary value of the loss. The first of these phases primarily concerns the extent of losses and the question of what damage counts for compensation; this particular aspect of the issue of mitigation is the subject of Part I of this article. The connection between mitigation and the pecuniary evaluation of a plaintiff's damages is examined in Part II where I focus on the effects of inflation and other factors that influence the cost of compensation. Finally, from a comparative point of view, one of the main interests of the present study lies in observing that the concept of mitigation has achieved a different status in civil law and in common law. The conclusion of this work explores this situation, and aims at explaining the historical and juridical circumstances that may have caused common law to attain higher levels of generality and of abstraction than civil law with regard to the issue of mitigation.

Judicial Review and the <i>Charter</i>

It is difficult to characterise court action seeking relief or remedies for government breaches of Victoria's Charter of Human Rights and Responsibilities. The Act's remedies section is a model of obscurity. It provides no new remedies, and probably bans damages for breach. It may even require joinder of Charter and non-Charter causes of action. It does not ban judicial review's remedies, whose key concepts in non-Charter contexts are jurisdictional error, nullity, and invalidity. In Charter contexts, however, those terms are almost always a distraction. Judicial determinations of Charter breaches are more direct than supervisory. Further, nullity or invalidity are the usual outcomes of judicial review's remedies, and their premise is the governing law's meaning. It is improbable in the extreme to impose such a meaning upon the Charter. The real limitation on remedies lies not in the remedies section itself, but in the Act's failure to empower ongoing court oversight of government responses to judicial declarations of systemic rights violations.

THE “LEGITIMATE INTEREST IN PERFORMANCE” IN THE LAW ON PENALTIES

AbstractThe article focuses on the “legitimate interest in performance” requirement which is now at the heart of the new test on penalty clauses but which has been left undefined by the Supreme Court in Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2016]. It seeks to bring clarity to what is meant by “legitimate interest in performance” by examining other areas of the law of remedies for breach of contract where concepts of legitimate interest have featured in the court’s reasoning. It also makes suggestions as to what considerations are or might be relevant in determining whether a contracting party has a legitimate interest in performance, in particular a legitimate interest that goes beyond compensation.

Civil Remedies for Breach of Continuous Disclosure Obligation of Issuers of Securities in the Comesa Region—a Regional Comparative Analysis

Civil Remedies for Breach of Continuous Disclosure Obligation of Issuers of Securities in the Comesa Region—a Regional Comparative Analysis

Moral Diversity and Efficient Breach

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them tens or even hundreds of thousands of dollars. Their moral beliefs led homeowners to forgo opportunities for efficient breach that firms would have seized, thus exacerbating al-ready swelling wealth inequalities. This Article explains this phenomenon, identifies its consequences and examines strategies to address it. Neither ex post judicial interventions (such as adjusting the remedies for breach) nor traditional ex ante regulatory interventions (such as disclosure requirements) will effectively address the problem. Instead, the most promising approach is a novel solution based on the framework of choice architecture: requiring contracts to include an express term creating an option to exit the contract and pay a fee equivalent to expectation damages. An express exit term elevates an implicit legal option into an explicit contractual option, reframing the moral choice so individuals would perceive exiting the contract as a morally permissible performance of their promise rather than a morally forbidden breaking of it. The presence of that exit term thereby aligns individuals’ perceptions of their moral obligations under the contract with sophisticated firms’ approaches to breach. The Article concludes with new empirical evidence that demonstrates the practical impact of an exit clause. It presents the results of two experimental studies I performed that demonstrate the effectiveness of a mandatory exit clause in reducing the effects of the asymmetry between individuals and firms. Those results show that exit clauses could have substantial practical implications for the regulation of contracts in contexts like consumer and mortgage contracts.

Breach Inducement Activities and Performance of Breach Remedies

We study different breach remedies, considering the possibility of breach inducement activities -- actions taken by one contract party to make it more costly for the other party to perform the contract. We analyze the performance of each remedy in suppressing breach inducement activities and eliciting efficient (selfish) relationship-specific investment when ex-post renegotiation is allowed. We find that (1) expectation damages perform best, always achieving the optimal outcome; (2) specific performance and liquidated damages cannot always achieve the optimal outcome; and (3) liquidated damages may or may not perform better than specific performance, inducing less or more breach inducement activity. These rankings offer an alternative justification for the court to implement expectation damages rather than specific performance and explain many disputes on liquidated damages involving breach inducement activities.

Developing the Jurisprudence of Constitutional Remedies for Breach of Fundamental Rights in South Africa: An Analysis of Hoffman and Related Cases

In order to accomplish its objectives of extensively regulating rights and obligations, the 1996 Constitution of South Africa similarly provides for the enforcement of those rights by the courts. In turn, it has, in the said enforcement provisions, invested in the courts enormous discretionary powers to enable them to effectively deal with breaches of the entrenched fundamental rights as well as all constitutional rights violations. That the Constitutional Court has purposefully interpreted and made optimum use of the expressions: ‘appropriate relief’ and ‘just and equitable’ order in developing the constitutional remedies jurisprudence is crystal clear from a wealth of available case law. It is also not in doubt that the contributions of Justice Ngcobo (later Chief Justice) in this regard are intellectually gratifying. This presentation singles out for discussion and analysis the judgment of Ngcobo J in Hoffman v South African Airways 2001 (1) SA 1 (CC) which not only typifies judicial activism at its acme; it has also introduced into the South African public and labour laws, the novel remedy of ‘instatement.’ Apparently drawn from the analogy of the labour law remedy of reinstatement, ‘instatement’ is akin to the remedy of mandamus in public law, and specific performance in the law of contract. This article moves from the premise that this innovation is one of its kind in contemporary common law jurisprudence and one which courts in the common law jurisdictions world would no doubt emulate one fine day.

Paying for What You Get—Restitution Recovery for Breach of Contract

This article begins with a brief discussion of restitution as a remedy for breach of contract under the Restatement (Second) of Contracts. It then discusses the changes the Restatement of Restitution adopts and the reasons for the changes. Next, it discusses why the changes have not only failed to achieve the goal of clarifying the “prevailing confusion” related to restitution and breach of contract, but have at times created more confusion. It then explains that contract and restitution principles are not only not in tension relative to restitution for breach of contract, but in fact support such a recovery.

Enforced Performance vs. Damages: An Empirical Study

Legal economists and other theoreticians continuously debate the pros and cons of specific performance as a remedy for breach of contract; and comparative-law scholars debate the extent to which legal systems actually diverge on this issue. Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study the pertinent issues, but none have quantitatively analyzed actual court judgments. This Article revisits the theoretical and comparative debates, and describes the surprising findings of a quantitative analysis of judgments concerning remedies for breach of contract in Israel during a 69-year period (1948-2016). While the judicial and scholarly consensus is that the Remedies Law of 1970 revolutionized Israeli law by turning enforced performance from a secondary, equitable relief to the primary remedy for breach of contract, we hypothesized that no such revolution has actually occurred. Our findings indicate that after 1970, the resort to enforced performance has actually decreased considerably. We examine several explanations for this result, and show that this unexpected phenomenon is associated with the increasing length of adjudication proceedings. The implications of these findings are discussed.

Breach of Contract: Automatic and Unilateral Price Reduction

AbstractThe recent reforms of the French Civil Code have also regulated remedies for breach of contract, by introducing price reduction as a general instrument that can be applied to all contractual types. Firstly, the article analyses the harmonisation projects and regulations on which the French reform claims to be based, for the purposes of verifying whether the French legal framework only reproduces solutions already tested or whether it is innovative with respect to such models. This study highlights the introduction of innovative solutions through which price reduction is achieved. Whilst price reduction is usually ordered by the court, following a claim by the non-breaching creditor, under the French model the price reduction remedy does not require the court’s intervention as it can be performed directly by the creditor: this is an automatic and not a court-based remedy. Secondly, the article also analyses whether the same outcome that is obtained through the automatic price reduction can also be achieved through the use of other legal instruments. This article focuses on a comparative law analysis with the common law system with respect to compensation for damages under English law. With respect to the civil law models, the article examines the Italian model in which parties generally resort to actions for compensation and the exception of partial breach.

Remedies for Breach of Privacy: A Study of a Different Hedgehog

This article was written as stating and commenting on the American law of remedies in the tort law of privacy. It will appear in a book edited by Jason Varuhas and Nicole Moreham to be published in 2018 by Hart Publishing (UK). After examining the theoretical basis of American remedies law with its differences from, and similarities to, the theoretical foundations in other common law and civil law jurisdictions, the paper probes the remedies as shaped by the substantive interests of protection of property and the autonomy enhancing purposes of privacy protection. Each of the traditional categories of the tortious protection of privacy as fashioned by William Prosser touch free speech interests. To the extent that privacy protections trench on those free speech interests, as realized in the US Supreme Court’s aggressive first amendment jurisprudence, the remedies are thus quite idiosyncratic compared with remedies elsewhere. For example injunctive relief is crimped and damages are constricted. The remedial law must be understood against the first amendment to which every other interest bends its knees.

Studies in the Contract Laws of Asia. Volume I: Remedies for Breach of Contract. Ed. by Mindy Chen-Wishart, Alexander Loke and Burton Ong. – Oxford: University Press 2016. XLII, 486 S.

Studies in the Contract Laws of Asia. Volume I: Remedies for Breach of Contract. Ed. by Mindy Chen-Wishart, Alexander Loke and Burton Ong. – Oxford: University Press 2016. XLII, 486 S.

UNA CRÍTICA A LA IDEA DE INCUMPLIMIENTO EFICIENTE DESDE EL DERECHO DE CONTRATOS

The theory of efficient breach of contract is one of the core components of the economic analysis of contract law. This paper makes a review of this theory. On this respect, and starting from an instrumentalist perspective, consistent with law and economics, the paper claims that efficient breach is an inadequate approach towards the analysis of remedies for breach of contract.

A new frontier for Brussels I – private law remedies for breach of the Regulation?

The English courts have held that the Brussels I Regulation confers private law rights, such that an employee may obtain an anti-suit injunction on the basis of their “statutory right” to be sued in England under the employment provisions of the Regulation. This article examines the correctness of this proposition and argues that the Regulation does not confer rights or impose obligations on private individuals that they may enforce against one another. The article goes on to consider the implications of the English decisions and their remedial consequences, including the possibility of seeking an award of damages for breach of the Regulation.

Exclusive choice of court agreements: some issues on the Hague Convention on choice of court agreements and its relationship with the Brussels I recast especially anti-suit injunctions, concurrent proceedings and the implications of BREXIT

This article contends that the system of “qualified” or “partial” mutual trust in the Hague Choice of Court Agreements Convention (“Hague Convention”) may permit anti-suit injunctions, actions for damages for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such remedies further the objective of the Convention. However, intra-EU Hague Convention cases may arguably23 not permit remedies for breach of exclusive jurisdiction agreements as they may infringe the principles of mutual trust and effectiveness of EU law (effet utile) underlying the Brussels I Recast Regulation. The relationship between Article 31(2) of the Brussels I Recast Regulation and Articles 5 and 6 of the Hague Convention is mapped in this article. It will be argued that the Hartley–Dogauchi Report’s interpretative approach has much to commend it as it follows the path of least resistance by narrowly construing the right to sue in a non-chosen forum as an exception rather than the norm. This exceptional nature of the right to sue in the non-chosen forum under the Hague Convention can be effectively reconciled with the Brussels I Recast Regulation’s reverse lis pendens rule under Article 31(2). This will usually result in the stay of the proceedings in the non-chosen court as soon as the chosen court is seised. The impact of Brexit on this area of the law is uncertain but it has been argued that the likely outcome post-Brexit is that the regime applicable between the UK and the EU (apart from Denmark) in relation to exclusive jurisdiction agreements within the scope of the Hague Convention will be the Hague Convention.